whom
Mr. Justice Stewart and Mr. Justice White join, dissenting.With deference, I consider that the T. I. M. E. case, 359 U. S. 464, plainly controls this one. That it does control is not and could hardly be gainsaid to the extent that the complaint purports to allege a statutory cause of action, that is, one based on the terms of the Motor Carrier Act itself. T. I. M. E., at 468-472. However, con*90struing the complaint as alleging also a common-law cause of action, the Court holds that such an action is “not inconsistent” with the Motor Carrier Act and is therefore preserved by § 216 (j) of the statute.
The Court’s decision rests primarily on the significance it accords to the existence of certain administrative procedures available to shippers to challenge rates in advance of their application, see §§ 216 (g) and 217 (c) of the Act, and the lack of such protective remedies in the case of routing practices. In addition, three further considerations are asserted to support its conclusion: (1) a misrouting claim does not jeopardize the stability of tariffs or of certificated routes, whereas to permit actions attacking the reasonableness of rates would hamper the efficient administration of the Act; (2) the allowance of misrouting actions will deter misrouting practices and decrease the number of “cease and desist” proceedings before the I. C. C.; (3) the absence of any judicial remedy would put the shipper entirely at the mercy of the carrier, contrary to the purpose of the Motor Carrier Act. This reasoning, I submit, entirely misconceives the basis of the T. I. M. E. decision.
The result reached in T. I. M. E. basically rested on two interdependent considerations: (1) the courts may not adjudicate a matter over which the Commission has been given primary jurisdiction, 359 U. S., at 473-474; (2) since the Commission must decide whether a rate is reasonable and Congress has denied it the authority to award reparations for past unreasonable charges, to allow a judicial remedy for recovery of past rate charges would “permit the I. C. C. to accomplish indirectly what Congress has not chosen to give it the authority to accomplish directly,” id., at 475.
Both of these factors are present here. There can be no doubt that under § 216 (b) and (e) of the Interstate Commerce Act the Commission has primary jurisdiction *91over the complained of misrouting practices,1 as indeed the Commission’s action taken with respect to these very practices, Hewitt-Robins, Inc., v. Eastern Freight-Ways, Inc., 302 I. C. C. 173, and the Court’s opinion in this case show. Nor is it suggested that the Commission possesses any reparations authority with respect to such misrouting. The conjunction of these factors thus brings T. I. M. E., decided only four Terms ago, into full play.
1. It is true that in this instance the Act does not contain certain protective provisions as in the case of rate making. This cannot, however, serve to distinguish T. I. M. E., whose determination of the congressional purpose underlying the Motor Carrier Act was based on considerations that stand quite independently of the impact of particular provisions of the statute. It should also be noted that the absence of such provisions does not mean that carriers may follow misrouting practices with impunity. Section 212 (a) of the Act provides that the Commission may, on its own initiative or on complaint, suspend or revoke certificates, permits, or licenses for willful failure to comply with any provision of the Act or any order or regulation of the Commission. Under -§ 216 (e) the Commission may order the termination of an unjust practice and prescribe the lawful practice to be followed. Section 222 (a) imposes fines for violations of the Act, and § 222 (b) confers jurisdiction on the District Courts to enjoin violations of the Act when application is made by the Commission.
*922. If the issue as to the reasonableness of a routing practice is referred to the Commission, a procedure the Court recognizes as essential, allowance of a judicial remedy for misrouting will not jeopardize the stability of tariffs or of certificated routes. But the suggestion that such a danger was presented by a court action challenging unreasonable rates and that this contributed to the decision in T. I. M. E. is manifestly untenable. It was conceded there, as of course it had to be under prior decisions of this Court,2 that the primary jurisdiction doctrine compelled referral to the Commission of all issues as to the reasonableness of the rates. Since even if a judicial remedy were allowed the Commission would have been the tribunal deciding the basic question, the course of decision would have been uniform and there would not have, been, any more than here, interference with the Commission’s functioning in the area of its special competence or any threat to the stability of the rate structure. Moreover, the possibility that rate actions might constitute a threat to the rate structure through stimulating excessive litigation could hardly have been regarded as a significant factor in T. I. M. E., for it was there observed that only a handful of actions to recover for unreasonable charges had been brought in the previous 24 years. 359 U. S., at 479. And if the Court now believes that to have been a relevant consideration in T. I. M. E., it should certainly be of greater weight with respect to misrouting claims, which are likely to arise more frequently because, as the Court points out, “selection of the route is usually made on an ad hoc basis, precluding preshipment determination of its reasonableness.” 3
*933. Finally, as to the suggestions that actions such as this should be allowed because of their incidental deterrent effect on misrouting practices and in the interest of justice to shippers, it need only be said that these are matters for the Congress.4 Our duty is to apply the statute as we find it.
I would affirm.
Section 216 (b) of the Interstate Commerce Act, 49 U. S. C. § 316 (b), provides in pertinent part: “It shall be the duty of every common carrier of property by motor vehicle . . . to . . . observe . . . reasonable . . . practices . . . relating to or connected with the transportation of property in interstate . . . commerce.” Section 216 (e) provides that whenever “the Commission shall be of the opinion that any . . . practice ... is or will be unjust or unreasonable ... it shall determine . . . the lawful . . . practice.”
See, e. g., Texas & Pacific R. Co. v. American Tie & Timber Co., 234 U. S. 138; Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426.
If the Court’s reference to Commissioner Eastman’s statement quoted in T. I. M. E., at 477-478, n. 18, is intended to imply that *93the present action may be characterized as one for rate “overcharges” and thus is permissible, it should be noted that the “overcharges” to which the Commissioner referred were, as his statement makes clear, charges “above published tariff rates,” id,., at 478, not those resulting, as alleged here, from the application of a wrong tariff. It is only the former that the Commissioner thought could be recovered “in court as the law now stands.” Id., at 478.
So far, Congress has refused to act. See H. R. 8031, 86th Cong., 1st Sess. (1959); 359 U. S., at 471-472 and notes 10, 11.